A senior attorney-general bureaucrat has struggled to explain to a Senate committee the rationale for amendments broadening ASIO’s remit to spy on organisations overseas and tried to duck questions about whether the amendment would enable ASIO to spy on WikiLeaks.
In a confusing performance yesterday afternoon, Geoff McDonald, a Band 2 SES officer from the Attorney-General’s Department, appeared before the Senate’s Legal and Constitutional Affairs Committe conducting hearings into the bill to widen ASIO’s remit for spying overseas. The usual job of bureaucrats in such settings is to be across the bill in such detail that they can handle any and every question on it, because in such hearings there is no minister to run interference or to take policy questions.
The amendment has been described within the bureaucracy as the “WikiLeaks amendment” because it will enable spying on non-political organisations like the whistleblowing website, which currently isn’t captured by the spooks’ remit.
The central question under discussion yesterday was the extent to which the current legislation is wide enough to allow ASIO to spy on foreign organisations that threaten Australia’s interests. Coalition Senator and foreign policy buff Russell Trood was insistent in questioning the Law Council, which has made a submission criticising the amendment, that the current Act was not wide enough to incorporate non-state actors.
The current definition allows ASIO to apply to the attorney-general to spy on foreign governments or foreign political organisations, but would be dramatically widened under the amendment to allow spying in relation to anything to do with “the interests of Australia’s national security, Australia’s foreign relations or Australia’s national economic well-being”.
Pressed by Greens Senator Scott Ludlam to describe an example of a non-state actor that could not currently be placed under surveillance under the current legislation, McDonald invoked an example of someone engaged in the trading of nuclear material unconnected to a government, although he admitted the current legislation caught most organisations that might be involved in such activities by virtue of being “foreign political organisations”.
But quizzed by Labor Senator Louise Pratt to provide further detail, McDonald, who appeared unsure of what the current ASIO legislation enabled, struggled: “If someone is involved in nuclear proliferation, that’s the sort of crime, or feeding that sort of crime, is clearly the sort of thing we’re thinking of here.
“Foreign countries are already picked up under foreign relations, but a corporation’s not. If it’s nuclear it’s probably security anyway, what kind of intelligence might you want on a foreign corporation?”
He replied: “Well you could have someone who is, you can’t get any connection between the person and some foreign government trying to do the proliferation…”
But Pratt asked him to use a non-proliferation example — “or am I wrong in assuming that proliferation is not always going to be picked up under security?”
“No you could get someone who’s in the supply chain of that,” McDonald replied, “OK, so the person might be involved, it could be a supply chain to wherever it’s going, whether it be a foreign government or whatever, where the item of import to proliferation is going to be supplied from A to B and then B to C and quite often is covered like that so they…”
Pratt: “So is that economic or security on that basis?”
McDonald: “Well it could be national security … is one of the more likely ones, or economic … depending on the circumstances.”
As Pratt initially noted, being security-related, that example is already caught by current legislation. So we remain none the wiser about what specifically the government has in mind about what it wants ASIO to go after that it can’t get now.
McDonald tried to insist in an opening statement that the amendment had nothing to do with WikiLeaks, and went to some lengths to claim it had been under development for an extended period of time predating last year. But he refused to answer a direct question from Ludlam on whether ASIO was currently spying on WikiLeaks, could spy on the organisation, or would be enabled to do so.
In an extended exchange with Ludlam, McDonald declared he “didn’t know enough about WikiLeaks to know whether they’re covered by the existing legislation or they’re not… I would be surprised if a group like that would be caught by this. But it’s speculative for me to be talking about such cases.”
This made for an odd contrast with McDonald’s insistence on addressing the WikiLeaks issue in his opening statement, before even being asked.
“I don’t think it’s speculative at all,” said Ludlam, and kept pushing. A hesitant McDonald then changed tack: “Anything that is done with implications for security … we heard from the Law Council, can already be caught … there are all sorts of allegations about what WikiLeaks have done and what they haven’t done, and some of those things that people have said they’ve done would probably be caught under the definitions in the ASIO Act … but I can’t get into saying one way or the other…”
McDonald then refused to explain further, declaring he’d explained “the parameters” of how the amendment was going to work and wouldn’t go further.
Asked what the hurry was with the bill — the committee’s hearings have, at the government’s insistence, been brought forward and the inquiry rushed — McDonald declared: “I can assure you it is very important to get … there are practical reasons behind it…”
“I don’t feel any better informed I’m afraid,” Ludlam concluded. Indeed.
Be afraid, be very afraid. Once this type of spying power is consolidated, in conjunction with Conroy’s NBN, we are seeing the basis for a police state where all information will able to becontrolled by the government, and they will be able to spy at will on anybody.
For decades during the Cold War we were actively engaged in defence against the potential ravages of totalitarian communism with the Stasi and the KGB as examples of the misuse of totalitarian government power.
By establishing these enabling facilities, we are setting the ground work for a similar control mechanism which can be used to control freedom of speech and freedom of information in the hands of mischievious and corrupt government, (but I forgot aren’t they all?).
Bernard,
I’m not sure how one tots up the total in dollars, but to me at least, this is the real cost of the “war or terrorism”, the dramatic – near unconstrained – expansion of surveillance and spookery since September 11th.
This of course was precisely the initial strategy behind pre-revolutionary Russian terrorism – that the State, to maintain order and security, would be forced to strip away the trappings of democracy and the facade of liberalism and be exposed for what they saw it as, a dictatorship of capital and feudal class interests.
I don’t think this strategy is a direct part of Al Qaeda’s thinking … they are more your “propaganda of the deed” type of terrorist… playing for leadership of a mythic muslim revolt by spectacular acts of terror.
But despite these differences, it seems we are still reacting just like the Tsar. Perhaps necessary as a short term defence – a limited and partial reaction – but it is not how to win a struggle against the politics of anger and desperation. Just ask the Tsar.
If the government can’t make a compelling case for these legislative changes – even in the abstract, they don’t have to talk about proposed operations – the law should not be passed.
It is clear that the representative they sent could not make a compelling case as to why the current law was deficient.
Very Interesting stuff here Bernard. Firstly one would hope that a senior in the A-G dept would be 100% accross the Bill. It is a fact that governments spy; always have and always will. I have no problem with non-government orgs being targeted as corporations are being coopted to do much government work all cross the globe. Multinational weapons traders are mostly non government actors.
While I do not like the witch hunt of Wikileaks it is only natural that governments would want to know just WHO in their departments is leaking; not all government activity in security issues should be for public eyes.
I look forward to seeing how the actual legislation is enacted and tested.
This is very odd I have to say. Given the government needs to be very precise about its agenda, this is very wooly and hand-wavey. Are the coalition just going to wave this through because it doesn’t want to rock the boat on anything labelled ‘security’?
It’s also bizarre that the public service is so ill prepared to answer basic questions on ‘what does this cover that isn’t covered already’?
I hope this gets sent back to the lower house with a ‘must do better’ comment. ASIO has ballooned in recent years, and a very tight rein needs to be kept on its powers.